Monday, 24 September 2018

Hearing of Representation / Appeal cases

The right to make representation before the Advisory Board is different from the concept of appeal / judicial review by the court. Representation before the Advisory Board have the following meaning:

".... It is the right to protest, which by necessary implication and reading it in the context of Article 5 (3) of the Federal Constitution, is a right to challenge whatever is being brought against him (the detainee)... in the case of Kamarulzaman bin Yahaya v Minister of Home Affairs [1977] 5 MLJ 256
In listening to and considering the representations of the detainees detained under any of the preventive laws, the Advisory Board will consider all matters of law and the facts as provided by the Federal Constitution LLPK. It should be noted that the detention order by the Home Minister is only valid if:

• the Advisory Board heard and considered the representations  of the detainees within three (3) months from the date of receiving the representations, or within the period allowed by His Majesty the Yang di-Pertuan Agong, and submit recommendations to His Majesty the Yang di-Pertuan Agong for assent; and
• after His Majesty the Yang di-Pertuan Agong issue directions to the Minister whether to continue or terminate the detention order.

In essence, the proceeding before the Advisory Board is the only way the detainees can challenge the decision of the Minister in terms of law and fact. The applicable law (LLPK) does not give the detainees the right to challenge the decision of the Minister at the Court, except on matters of procedures’ compliance through a writ of habeas corpus. In other words, the Advisory Board has the responsibility to ensure the non-occurrence of any abuse of power by the executive under preventive laws.

In considering the representations  of the detainees, the Advisory Board, through the records of the investigation and the evidence used by the Minister in making his decision, will take into account the following matters:

1. Whether the grounds to the allegations of fact established by the Minister in making the detention order meet the scope of the law used

LLPK

The Advisory Board will examine whether the detention order comply with section     6 (1) - "... is satisfied in respect to any person that such person has been or is     associated with any activity relating to or involving the trafficking in dangerous     drugs, the Minister may, if he is satisfied that it is necessary in the interest of     public order that such person be detained, by order direct that such person be     detained for a period not exceeding two years."

2. The Advisory Board, among others will review and consider the question of 'satisfied' by the Minister when he is deciding that the person should be detained.

3. The Advisory Board will examine whether the allegations of fact against the detainees is to prevent (preventive) or to punish (punitive).

All the course of proceedings before the Advisory Board shall be held in camera. All questions before the Advisory Board are decided by a simple majority of the Chairman and two members. If a member refuses to vote, while the Chairman and another member did not agree, the opinion of the Chairman shall prevail.

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